Northum v. Kellogg

15 Conn. 569 | Conn. | 1843

Storks, J.

Lucy-Ann Northum, one of the plaintiffs, having, since the commencement of this suit, intermarried with Jabez H. Fuller, the first, question reserved for our advice, is, whether, under the circumstances of the case, such marriage should be allowed to be suggested on the record, and the said Fuller permitted to prosecute the suit wish the other plaintiffs. This, clearly, could not be, done, by the common law. But it is claimed to be allowable under the statute, which provides, that £l no action commenced by a single woman, who intermarries during the pendency thereof, shall abate, on account of said intermarriage, provided the husband shall appear in court, and cause such marriage to be suggested on the record ; and that he may then proceed in the same manner as if the suit was commenced after such intermarriage.” Stat. 49. tit. 2. sect. 25. Although the construction of this statute, and the practice to be pursued under it, have not, as to the point in question, before been presented, this court, in the case of Russell v. Hosmer, 8 Conn. R. 220., had occasion, as to a similar question, to settle the meaning of an analogous statute, which provides that, “ when an action shall be pending in any superior or county court, and the plaintiff, before final judgment, shall die, it shall not abate, if it might originally have been prosecuted by his executor or administrator ; and that, in such case, the executor or administrator may enter their names in the suit, if they see cause, and prosecute the same.” Stat. 49. tit. 2. s. 27. It was there determined, on much deliberation, that under that statute, the executor or administrator may enter at the next term after the death of the plaintiff, as a matter of right; but that he shall not be permitted to enter afterwards, without showing good reason for his neglect; and that of the sufficiency of such reason, the court is to decide, from the facts shewn by the executor or administrator. With that decision we are entirely satisfied ; and unless there are substantial reasons to distinguish that case from the present, as to the point now presented, we are not disposed to adopt a different principle. Unless some essential diversity can be shewn between the two cases, there ought, in both, to be a uniformity of practice. Such diversity we do not perceive. The general objects of the two statutes are similar — that of one being to obviate the effect of the death, and of the other, the effect of the intermarriage, of the plaintiff; and to provide, that the suit shall not abate for such cause, as it would by the common law, but that it may be prosecuted by the representative or husband respectively. With respect to the time within which n ■- , i'i ' i .>m’i'‘tent for them to suggest the death or inter-nri”11,1;; ■ and et,*er their names as plaintiff, (which is the ,pi stio<> n w •iff >re us.) it is difficult to suppose, that the legislature could have intended any distinction. All the me sons drawn from the inconveniences and evils, so Iffo.ibh pointed out, by the judge giving the opinion of the court, in Russell v. Hosmewhich would result from permitting the executor or administrator to enter and prosecute, at any time, however remote, after the death of the plaintiff, apply with full force in the case of the intermarriage of one of the plaintiffs, and render it equally necessary to prescribe some limitation. We, therefore, adopt the same principle in both cases, and hold, that it is incumbent on the husband, in order to entitle himself to suggest the marriage, after a term has intervened, to show some special reason for his neglect, which shall be satisfactory to the court.

In the present case, it is found by the court, that the said Lucy is the daughter of John C. Northum, who moves, that her marriage be suggested on the record, and the name of her husband entered; that the said John lived in Haddam, within a short distance from the court-house, and also of the residence of the plaintiffs’ counsel; and that the marriage was known to the said John, when it took place ; and no reason whatever is given why the marriage was not suggested at the first term of the court thereafter. The motion to suggest the intermarriage, and to insert the name of the husband as a plaintiff, was, therefore, too late, and should be denied.

The remaining question is, as to what judgment ought to be rendered on the plea in abatement, which avers the intermarriage of one of the female plaintiffs since the commencement of the suit. That in the case of a sole female plaintiff, the suit abates by her marriage, and that all the joint-tenants, or tenants in common, must join as plaintiff's in an action of trespass, or that their non-joinder may be pleaded in abatement, are familiar principles. Gould’s Plead. 247, 8. Bac. Ahr. tit. Abatement. G. I Chitt. PL 64, 65. (8th Am, ed.) Hence it results, that the marriage of one of several plaintiffs, during the pendency of the suit, has the same effect as if she was sole plaintiff; and to that effect is Oxnard v. Proprietors of Kennebeck Purchase, 10 Mass. R. 179., where this point is directly decided.

Bui the demurrer to the plea in abatement, in this case, is special, and points out that the plea was interposed at too late a period, and ought, therefore, to be disallowed. This, however, is not a cause of demurrer to the plea. It goes neither to its substance nor form ; but only to its reception by the court. Whether the plea was tendered within time, and ought to be received, respects merely the practice of the court; and an irregularity in that particular, is not the subject of a demurrer, which respects only the sufficiency of the plea. On the question of its reception, the parties had an opportunity to be heard. It is sufficient that the court received it, and made it a part of the record. Morgan & al. v. Dyer, 10 Johns. R. 161. Ludlow v. McCrea & al. 1 Wend. 228. 230.

The demurrer to the plea in abatement should, therefore, be overruled.

In this opinion the other Judges concurred, except Chtjuch, J., who was not present when the case was argued, and, therefore, gave no opinion.

Motion to enter disallowed.

Demurrer to plea overruled.